A Parliamentary Committee has ignored 95 per cent of the submissions it received on a Bill and voted to restore the type of draconian Ministerial powers last seen and used by Sir Robert Muldoon in 1983.
The Environment Committee has not touched a proposal that would allow Infrastructure Minister Chris Bishop to issue a formal statement advising the Environment Protection Authority of the regional or national benefits of a fast-track application it is considering.
In a submission to the Committee, the Parliament Commissioner for the Environment, Simon Upton, was harshly critical of the proposal.
“This is executive overreach for which no case has been made,” he said.
“It is as open-ended as the infamous Economic Stabilisation Act that allowed governments to regulate absolutely anything if they thought it threatened economic stability.
“I’m really taken aback that the Government should be asking Parliament to license ministers to issue what the New Zealand Initiative, charitably, I think, describes as opaque ministerial directions.
“There are no guardrails if you enact this provision.
“Ministers will be able to design bespoke policy statements for particular types of projects in an attempt to provide certainty for specific applications.”
The Government tried to obscure the presence of the proposal when it introduced the Bill into Parliament by claiming it was all about providing more competition for the grocery sector.
Labour’s environment spokesperson, Rachel Brooking, speaking on the introduction of the Bill on November 6, said Labour favoured more competition in the grocery sector.
“But most of this bill is not about groceries,” she said.
“It’s not about supermarkets.
“This bill is a Trojan horse for watering down—even more—this Government’s version of the fast track.”
In its report, published yesterday, the Committee said submitters expressed concern that this provision might increase the Minister’s influence over decisions and undermine the independence of expert panels, by requiring them to give weight to the Government Policy Standards (GPS) in considering whether to grant approval to applications.
“Submitters also advocated that the bill should clearly specify criteria for what a GPS could include, and a process the Minister must follow to develop a GPS,” the report said.
“Other submitters, including port industry and energy industry representatives, supported this provision.
“These submitters said that the ability for the Minister to issue a GPS would make clearer what kinds of projects meet the threshold for being considered to offer significant regional or national benefits.”
The Committee majority (National and ACT) argued that although expert panels would be required to consider any relevant GPS when making decisions about a substantive application, “we understand that it would be just one of several factors that they must consider.”
“The policy intent is not for a GPS to be determinative of certain projects gaining approval,” the report said.
“An expert panel could still decline approval if the adverse effects of a project were found to be significantly out of proportion to its regional or national benefits.”
Labour opposed the continued existence of the GPSs and recommended they be applied only to supermarkets.
In their minority opinion, they said there was no specified process for the development of a Government policy statement other than a requirement to consult other Ministers and then publish it.
“There are no criteria,” they said.
“This means that a Government policy statement could effectively pop out of a Minister’s head and be immediately relevant to fast-track decision makers.”
They differed from National and ACT in their view as to how much weight the EPA panel would need to give the GPSs.
“Most applications can only be declined if the adverse impacts in relation to the application are ‘sufficiently significant to be out of proportion to the project’s regional or national benefits’,” they said.
“We are concerned that a GPS would affect this proportionate test and make it more difficult for a panel to decline an application.
“Submitters referred to the new role of the GPS in decision making as “executive overreach”, and we agree.
“We agree with the New Zealand Initiative’s characterisation of the GPS as ‘Opaque Ministerial decisions”.
The Greens Environment spokesperson, Lan Pham, was even more condemnatory.
She said the Bill, as reported back, would allow a government “so obviously disconnected from what New Zealanders value” to pick and choose what it thought were significant national and regional benefits and give ministers greater power over which projects were progressed.
“Those of their rich mates and donors,” she said.
“Luxon’s Government forced this Bill through a rushed select committee process so it can ram it through under urgency next week, making a further mockery of the legislative process.
“With 95 per cent opposition, passing this into law under urgency shows that the Government knows just how bad it is.
“The Fast-track Approvals Act is already an abysmal overreach on the Crown’s obligations to Te Tiriti o Waitangi, communities’ democratic participation, environmental protections, and climate change obligations.
“The Coalition Government is eroding the principles of transparency and accountability that all New Zealanders deserve from any government.”
The Select Committee process was its own fast track.
Only ten days were allowed from the calling for submissions until they were closed off.
Because the Committee finished its three days of public hearings only last week and had to report by December 5, it had no time to re-draft the Bill. (That is usually the purpose of a Select Committee’s consideration of a Bill.)
“Although we did not seek to re-draft the bill, advisers have brought several issues to our attention following public submissions,” the Committee’s report said.
“We understand that the Government has identified several changes that it plans to make to the Bill.
“The Government intends to introduce an amendment paper at the committee of the whole House to make these amendments.”
The proposals to amend the clause providing for Government Policy Standards would have the potential to tilt the balance on the Environmental Protection Authority panel even further in the applicants’ favour.
“As introduced, clause five would require the Minister to consult other relevant Ministers before issuing a GPS,” the report said.
“The Government proposes to amend clause 5 to enable the Minister to consult any other person they consider appropriate during the development of a GPS.”
That would theoretically mean the Minister could work with the applicant on a statement supporting an application which the Committee would be bound to factor into its decision-making.
We have not heard the last about this Bill.
